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Full text of "Bish v. Chez Moi Tavern, Board of Inquiry, April 1981 BOI 128"

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ONi aXI^ 


APR 1 1 1981 



RIGHTcS CODE R.3.C. 1970, 



Jane Banfield Haynes 


Janet E. Minor For the complainant and 

the Ontario Human Rights 

Donald J. Catalano, Q.C. For Chez Moi Tavern and 

f4r, R, Korenowsky, Owner 

Hearing: l6 January 1981 

In September 1978 Peter 3ish wanted amployment and saw an advertisement 
in the Toronto Star newspaper which read as follows: 

WAITRESS /waiter ^ 
WE need full & part-time people who are reliable & 
want steady employment-. You should have dining room 
exper., be neat in appearance i dress. Lounge exper. 
is an asset. If you qualify, please apply at the 
Chez Moi Tavern, 30 Hayden St. (1 block S. of Bloor, E. 
off Yonge) between 3-5 p.m. on Mon. 

I4r. 3ish decided to seek this job in the belief that he was qualified, both in 
appearance and because he had previously worked for one year as a full-time 
waiter in a Toronto restaurant responsible for food and beverage service. 
During the afternoon of 11 September 1978 Mr. Bish went into the Chez Moi 
Tavern and spoke to a man behind the bar whom he took to be the bartender 
and told him that he was applying for work in response to the advertisement. 
According to the testimony of Mr. Bish, this individual told him ''that they were 
only looking for a waitress. I (i.e. Mr. Bish) said to him that the ad in 
the newspaper mentioned both waiters and waitresses. He said, 'Yes, he 
knew that, that they had to advertise both by law, but that they only wanted a 
waitress. ' The position was downstairs where it was waitresses working. 
I asked him if he knew that this was against the law and he said the opening 
was for a waitress." There was no further conversation and Mr. Bish then left 
the premises without speaking to anyone else, and a week later found emplojment 
at another Toronto restaurant. 

Shortly after this conversation, Mr. Bish filed a complaint under The 
Ontario Human Rights Code , R.S.O. 1970 c. 318 as amended. Section ^(l)(a) 
states that no one shall refuse to recruit any person for employment because 
of the sex of such person. Section ^(l)(b) states that no one shall refuse 
to employ any person because of the sex of that person. Section 4(1) (e) states 
that no one shall establish or maintain any employment classification or 
category that by its description or operation excludes any person from 
employment because of the sex of such person. 

In this hearing, two separate but related issues were addressed. The 
first concerned the authority of the bartender, or the individual to whom 
Mr Bish spoke, to speak for Mr. Korenowsky, owner of the Tavern, in stating 



that only waitresses were wanted, whatever the advertisement said. The second 
concerns the hiring practices of Mr. Korenowsky and the diff erentition, by sex, 
of persons hired for the two operations of the Tavern, that is, the beverage 
lounge and the dining room. 

In respect of the first, counsel for the Tavern and Mr. Korenowsky stated 
that an individual seeking employment would normally or usually ask to speak 
to a manager about conditions of employment, such as pay, hours of work, type 
of work, rather than take the word of an employee. Mr. Bish, on cross examination, 
stated that he had indeed, in respect of job applications both before and after 
the incident complained of, spoken to managers in the various restaurants. 
Counsel for Mr. Bish referred to the case of Muccilli and Ed's Warehouse 
Restaurant , (1979) I to support the contention that an individual seeking employment 
is entitled to assume that the person to whom he/she speaks in the first instance 
has the authority of the employer. Having considered the facts of this case, 
I am of the opinion that the present complaint is similar to the Muccilli case. 
There the complainant spoke on the telephone to someone who could be assumed to 
speak for the management in the normal course of employment enquiries. In this 
instance i^lr. Bish assiamed that the individual behind the bar had knowledge of the 
job qualifications but he did not make fxirther enquiries about the conditions 
of work and did not speak, or ask to speak, to the manager, a course of action 
which he followed in a subsequent application for employment, elsewhere. 
Neither Mr. Bish, Mr. Korenowsky or the Human Rights Commission officer, were 
able subsequently to identify the person behind the bar to whom Hr, Bish spoke 
and there is, therefore, no corroboration for Mr. Bish's account of that person's 
statement. There is, however, evidence that the statement that only a waitress 
was wanted, irrespective of the advertisement, was an accurate one, and concerns 
the pattern of hiring. 

The second issue therefore concerns the pattern of differentiation by sex 
according to function, and there is evidence to support Mr. 3ish"s complaint that 
Mr. Korenowsky, in September 1973, did make such a differentiation, on the grounds 
of his personal preferences. The Chez Moi Tavern, which Mr. Korenowsky has 
owned and operated for many years, has two levels or floors: the downstairs 
or basement level is a dining room, serving maals and drinks; the upstairs or 
street level is a beverage lounge with snack service. Mj. Korenowsky stated that 
it was his personal preference to have waiters employed in the beverage loiinge 
and waitresses employed in the dining room, on the groxinds that, among others, 

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only waiters could handle the heavy trays of drinks and handle or cope with the 
altercations and fights which might, and according to him, frequently do, break 
out among the customers and which in some cases require the attention of the police. 
On the other hand, Mr. Korenowsky was of the opinion that women were entirely 
suitable to serve in the dining lounge but he could give no reasons for this 
preference. He also stated that in his experience having waiters and waitresses 
working together in the same room led to undesirable personal interaction. 
The evidence of the interview between Mr. Korenowsky and the Human Rights 
Commission officer in early 1979 and the evidence presented at the hearing 
indicate that in the autxunn of 1978 at least, Mr Korenowsky firmly held the 
view that the segregation, of serving persons, by sex, was good business practice, 
based on many years of experience as an owner and manager. The evidence also 
indicates that subsequently Mr Korenowsky hired waiters in the dining room, but 
not, apparently, a waitress in the upstairs lounge. The evidence on these 
matters is not clearcut. Hiring records, by sex of those interviewed and hired, 
both in 1978 and later, were either not available or produced at the hearing. 
For example, Mr. Korenowsky stated that about ten individuals applied for a job 
as a result of the advertisement, but he could not say how many of either sex 
and whether a woman was hired in preference to Mr. Bish for the dining room job. 
Nevertheless, having considered the evidence and the testimony of the '^Human 
Rights Commission officer who spoke to several Tavern employees, I conclude 
that Mr. Korenowsky preferred to hire, and did hire, only waitresses for the 
dining room, and only waiters for the beverage lounge, in 1978. 

Does such a preference constitute a bona fide occupational qualification 
and requirement, as stated in the Code, section ^(6)? Counsel for the complainant 
referred to the case of Robertson and the Metropolitan Investigation Security 
(Canada) Limited, (1979) ยป where the employer attested that in his opinion certain 
jobs were suitable for mdn and others for women, and that the job in question 
was not suitable for the woman complainant. The chairman of the Board of Inquiry, 
after a review of relevant case law, stated that once a prima facie case of 
discrimination has been made out, the onus is placed upon the employer to prove 
that the discriminatory practice of hiring is so necessary to the business operation 
that it can justify the discriminatory effects of such a hiring policy. In my 
opinion and in this present instance, the personal preferance of Mr. Korenowsky 
cannot be said to constitute a bona fide occupational qualification or requirement 
for the employment. There is no evidence that Mr. Bish or any other qualified male 

could not have vmdertaken the duties required for either of the two areas in 
the Tavern, and specifically for the dining room where only waitresses were 
at that moment employed. 

The Board therefore finds that Chez Koi Tavern did refuse to employ 
Mr. Peter Bish because of his sex contrary to Section ^(l)(b) of the Code. 
Several remedies were requested by counsel for Mr. Bish. First, the Board was 
asked to award compensation to Mr. Bish for loss of employment income for the 
one week he was without employment; second, the Board was asked to award general 
damages for injury to feelings; and third, the Board was asked to require 
Mr. Korenowsky to post a copy of the Human Rights Code in his establishment 
and be directed that his hiring practices in the futvire reflect the mandate of 
the Code. 

Having considered the evidence, I am of the opinion that Mr. Bish should 
be compensated for loss of employment income for one week. I believe that 
his claim for damages for injury to feelings is not supported by evidence 
presented to the Board. I do not believe that he was so deeply hurt 
that his dignity or sense of self -worth was at stake, although I recognize 
that he was offended by the hiring pattern of the Tavern as stated by the 
employee he spoke to. The evidence of these hiring practices indicates that 
since 1979 the segregation by sex in the Chez Moi Tavern has been changed 
and accordingly I see no compelling reason 'to direct Mr Korenowsky to 
do so. 

In the result, I order the respondent to pay the complainant the sum- 
of $100 and to post a copy of the Human Rights Code in his establishment. 

Dated at Toronto this 10th day of April 1981 

Jane Banfield Haynes 


Board of Inquiry